Tuesday, January 5, 2016

China Mulls Ranking System for Lawyers

The Chinese government appears poised to launch a ranking system for lawyers, which could limit lawyers with "limited experience or who lack dedication" from appearing before intermediate or higher courts, where many defendants lack legal representation. Photo: Southern Weekend

Rumors of a new central government policy to issue a system of professional ranks for lawyers have put Chinese legal professionals on the defensive. The system could be used to limit lawyers’ ability to represent defendants in trials heard by higher-level courts or in major or complex cases, such as those involving the death penalty.

Observers say that central authorities are promoting the system in part to increase professional standards. As a recent article (translated below) in Southern Weekly makes clear, however, lawyers, academics, and even judges have their doubts. Many worry that the policy may have a negative impact by limiting access to legal representation and hindering the professional development of new lawyers.

The recent crackdown against human rights lawyers like Pu Zhiqiang, Tang Jingling, and those at Fengrui Law Firm has re-focused attention on the role played by lawyers in a legal system dominated by the party-state. While emphasizing the need to restore the credibility and authority of the judicial process, central authorities have made sweeping statements about the importance of lawyers and protecting lawyers’ rights. At the same time, steps are being taken to regulate the behavior of lawyers, inside and outside the courtroom. The stepped-up use of criminal prosecution and other sanctions against lawyers for being “disruptive” or “challenging authority” sends a message that new lines are being drawn.

Perhaps, then, the greatest source of anxiety about a ranking system is that central authorities may intend for it to increase regulation of the legal profession. Some fear it would become a tool to penalize “disobedient” lawyers and create more possibilities for corruption. Chinese lawyers have struggled for decades to eke out the limited autonomy they currently enjoy, and many—even those disinclined to take on controversial cases or strategies—fear returning to a system in which they are considered “state legal workers.”

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Lawyer Ranking System Provokes Fierce Debate

Ren Zhongyuan

Southern Weekly, December 5, 2015

Chen Weidong: Central Government Has No Concrete Plan Yet

Over the past couple of weeks, opinions have suddenly started to form regarding a ranking system that would limit the ability of certain lawyers to appear in court. This follows word that pilot trials of such a system are set to launch sometime next year.

On November 14, 2015, Professor Chen Weidong of China’s Renmin University Law School spoke on this development at the “Innovation Forum on Legal Services under the New Normal,” sponsored by the Guangzhou Lawyers Association and the Lawyers College at Guangzhou University Law School. His comments quickly sparked heated discussion.

The new policy could employ a ranking system to place restrictions on which lawyers can appear in court. Lawyers with limited experience or who lack dedication would not be able to represent clients in major or complex cases, such as those involving the death penalty, and they would not be able to appear before intermediate or higher courts.

Many lawyers have expressed firm opposition to such a plan. They say that there is no legal basis for a ranking system and that it would infringe upon the right of lawyers to practice freely and right of clients to make their own choices.

Chen Weidong has also become a target for criticism, about which he feels extremely aggrieved. “I didn’t recommend this policy,” he points out. “On the contrary, I have my reservations. When central authorities proposed this reform and initially began seeking comments, we told them all the arguments that [critics] are making. I saw that people hadn’t been paying enough attention to this issue, so I took the opportunity to explain what was going on.”

Back on August 20, the chairman of the Central Politico-Legal Commission, Meng Jianzhu, addressed the National Lawyers Work Conference. He said, “We can begin looking into a ranking system to govern court appearances for new lawyers who take up criminal defense cases.”

Chen Weidong told Southern Weekly that the “Opinion on Deepening Institutional Reform of Lawyers,” passed on September 15 by the Central Leading Group for Comprehensively Deepening Reforms, also made clear mention of a ranking system. The full text of that document has not been made public.

“Central authorities have two main goals in pushing this reform,” says Chen. “First is to regulate the legal services market and the other is to raise lawyers’ professional capabilities. There is a certain justification for this. However, it’s hard to say how to evaluate professional capability and who should do the evaluating. Since it’s a pilot scheme, it can be used as a test and the quality of the results can be used to decide whether or not to push the system forward.”

He noted that local Guangdong media had reported that many lawyers expressed support for a ranking system at the Guangdong Lawyers Work Conference held November 9–10. These supporters even said that Guangdong should take the lead in any pilot trials.

As far as Chen Weidong knows, however, central authorities currently have no specific locations in mind and, for the time being, have no concrete plan.

Two vice presidents of the All-China Lawyers Association (ACLA) confirmed to Southern Weekly that the organization had not yet settled on a specific view towards a lawyer ranking system due to major disagreements among lawyers and a lack of consensus. They said the issue was still rather sensitive and that it was inconvenient to comment further.

Tian Wenchang, chair of the ACLA Criminal Law Professional Committee, and Wang Cailiang, deputy chair of the Administrative Law Professional Committee, both said that none of the ACLA’s professional committees had even been made aware of this matter. The ACLA has not issued any notices on the subject and people had only heard about it individually.

In 2010, the Hainan Judicial Administration Department issued a consultation draft of “(Draft Revisions) to Regulations for the Legal Profession in the Hainan Special Economic Zone.” One provision in the document proposed a court-appearance system for lawyers based on ranking. Professional lawyers would be divided into junior, intermediate, and senior ranks. Apart from length of professional service, the ranking would also depend on “certain examinations and assessments.”

Due to vocal opposition, the proposed provisions were not ultimately passed. Aside from [Hainan], no other local governments have put forward similar provisions. Chen Weidong told Southern Weekly that Hainan came up with its regulations on its own initiative, not as part of any plan by central authorities.

In Hiring Lawyers, Don’t Defendants Have the Final Say?

One of the biggest reasons cited for opposing a court-appearance ranking system for lawyers is that it infringes upon defendants’ freedom to choose. Many lawyers and academics, including Chen Weidong, all believe that the state should exercise caution when it comes to interfering with individual choice.

Wang Cailiang argues: “According to the Administrative License Law, when it is possible to make adjustments through market mechanisms and professional organizations are capable of self-governance, there is no need for administrative licensing. Moreover, administrative licenses should only be used in situations in which licensing cannot be done through law, regulation, or other norms.”

Wang notes: “There’s the Lawyers Law, the three procedural laws, the Arbitration Law—none of these put any restrictions on lawyers’ ability to appear in court. So a trial scheme of this nature lacks any legal basis.”

Chen Weidong’s takes a more moderate position, believing that, for certain types of cases, there is something to placing restrictions on lawyers based on qualifications. The key is to pay attention to balance when setting up the system and give full consideration to the right of individuals to make their own choices.

“For example,” Chen says, “the death penalty is a life-or-death matter. If a young lawyer lacking criminal trial experience takes on a death penalty case and, because of his lack of experience, fails to ask necessary questions or remind the judge of certain things, once the death penalty is handed down it is a result that cannot be undone.”

Wang Zhaofeng, a member of the ACLA Criminal Law Professional Committee and one of the defense attorneys for Bo Xilai, holds a similar opinion. He told Southern Weekly that a lawyer’s professional abilities and experience matter a great deal. In major and complex cases, inexperienced lawyers can truly fail to grasp certain issues. Moreover, there is often a serious asymmetry of information between lawyers and the individuals who retain them. These things cannot be resolved through the market.

“A defendant can of course hire a lawyer without much experience, but when there are real interests at stake and some cases receive a lot of public attention it is hard to say whether the final result will be satisfactory,” Wang Zhaofeng warns. “If you set up a barrier to entry, you of course cannot eliminate the possibility of excluding some young lawyers who are extremely talented in favor of some older lawyers who are merely mediocre. It’s not completely satisfactory, but overall I think it should make things better.”

But in the view of people like Wang Cailiang, these are nothing but self-interested pretexts being put forward by older lawyers. Defendants will consider experience in choosing a lawyer, so there’s no reason to use administrative measures to totally exclude certain lawyers.

A judge who handles death penalty review cases for the Supreme People’s Court confirmed to Southern Weekly that very few junior lawyers actually handle death penalty review cases and that he has rarely encountered any during his nearly 10 years at the highest court. He says: “Even senior lawyers are uneven in their levels of ability. As far as the current quality of defense is concerned, basically junior and senior lawyers are equally effective.”

Another point is that current law allows ordinary citizens, such as a defendant’s friend or relative, to appear in court to handle civil or even criminal defense. Wang Cailiang believes that it is thus illogical to place restriction on lawyers alone.

“You might say that junior lawyers don’t have enough experience to appear before a high court. But at least they have passed the judicial examination and interned for a year, so they can practice law better than an ordinary person,” Wang reasons. “As long as the party to the case is willing, there’s no problem with an ordinary person appearing in court at any level on their behalf. So why place restrictions only on lawyers?”

Who Ranks on What Basis?

A rational ranking system is necessary as a prerequisite for restricting lawyers from appearing in court. But it is difficult to say who is capable and qualified to evaluate the professional abilities of China’s 270,000 lawyers in a way that ensures professionalism while at the same time remaining neutral and fair.

“Administrative bodies can’t do it, as it’s impossible for them to grasp the information necessary to make reasonable judgments,” says Professor Wang Jianxun, of the Law School at China University of Political Science and Law. “They are also prone to the corruption of power and undermined by arbitrary standards. It’s also dangerous to have fellow lawyers do the evaluations, because that can easily lead to infighting and become an excuse for some lawyers to suppress others.”

In his view, the attempt to match lawyers and courts through a ranking system raises the specter of central planning, under which the people in charge of the economy assumed that they could possess the necessary information to match supply and demand. But the universal failure of planned economies has already proven that no person is better than the market at accomplishing this.

“There are certainly discrepancies between lawyers in terms of their abilities,” admits Wang Jianxun. “But don’t judges and procurators also vary in ability despite having a ranking system? Are judges and procurators more capable just because they are in court or procuratorate at a higher level?”

Past experience supports this judgment. Beginning in 1987, the Ministry of Justice enacted Provisional Regulations for the Lawyer Profession and a set of other associated norms. Through this, lawyers were to be divided into five ranks, the lowest being “assistant lawyer” and the highest being “grade one lawyer.”

These rankings were largely a kind of honor and had no effect on a lawyer’s ability to appear in court. Now the market has largely replaced them.

Beijing Lawyers Association (BLA)—which includes more than 20,000 lawyers and covers the largest share of the market in the country—has not handed out professional ranks for more than a decade. “Nobody recognizes them,” explains Han Jiayi, secretary-general of the ACLA Criminal Law Professional Committee.

Wang Cailiang recalls that a group of Beijing lawyers once collectively boycotted the rankings, so the BLA stopped issuing them. Most of those lawyers had returned from living overseas. They were highly educated and after a few years were able to play important roles in the profession. But according to the standards then in place, they would have had to start from the lowest professional grade and work their way up one rank at a time. They couldn’t compete with the older lawyers, and it truly wasn’t very fair. By the time Wang got to Beijing, the BLA had already stopped reviewing lawyers and assigning professional ranks.

Wang Cailiang told Southern Weekly that his experience going through these ridiculous evaluations is the reason he’s now so firmly opposed to them. He doesn’t want to see young lawyers repeat this past experience. For example, it took him two tries before passing the second-grade lawyer examination. He satisfied all the other criteria, but English held him up. The English part was simpler the time he passed, with multiple-choice and true-false questions allowing him to concentrate on one answer and bluff his way through.

As Chen Weidong and Wang Zhaofeng see it, however, these are all issues of how the system is designed. Whether or not to test English, whether there should be different types of cases, or whether the requirement for number of years in practice should be uniform—all of these things can be studied and improved upon. For certain types of cases, it would be best to have some sort of a threshold, something depending on the nature of the case itself.

“After all, there are some objective standards there,” says Wang Zhaofeng. “How many times have you handled this type of case? Have there ever been any complaints or disciplinary sanctions? Once you’ve met the threshold, it shows that you’ve reached a decent standard. But there’s no point in turning these rankings into a kind of honor and making it seem like first-grade means you’re better than second-grade. This isn’t a contest to see which lawyer is better. That’s something on which opinions will differ, so there’s even less reason to use rankings in connection with what fees are charged.”

More than ranking, Wang Zhaofeng and Chen Weidong both prefer a kind of categorization or specialization. For example, you can divide lawyers between those who do litigation and those who don’t, according to their specific type of practice. This would be a more workable system and would facilitate lawyers’ ability to accumulate professional experience.

But there are some judges and lawyers who think that, considering the current stage of development of China’s legal profession, it’s not the right time to categorize them into specializations.

“In cities like Beijing and Shanghai, you might be able to see clear specialization within the professional space,” observes Han Jiayi. “Some lawyers have settled into doing only litigation, while others do non-litigation work or focus on one kind of case. But in the provinces—even in provincial capitals—many lawyers are still doing it all. How can you categorize them? It’s inappropriate to divide them up by years of experience, and case volume is probably no good either because of the differences between cases. For a Beijing lawyer to handle 20–30 cases a year might be considered quite a heavy load, but in the provinces you typically have lawyers handling 60–70 cases a year.”

In his view, a ranking system might actually make it more difficult for younger lawyers to get established and develop themselves. For the sake of making the grade, they will not only have to focus on their professional space but also pay attention to their case volume.

Liu Shibi, a former judge who worked in the courts for more than 20 years, also thinks: “Perhaps in 10 years’ time it’ll be more appropriate to talk about this kind of categorization.”

Once Ranked, Will Enough Defense Lawyers Remain?

Even if he doesn’t clearly oppose setting a threshold for lawyers to appear in court, Wang Zhaofeng still has concerns. He notes that only around 20 percent of defendants are represented by defense lawyers overall, and that in areas where this figure is relatively high, it barely surpasses 30 percent. If you add a ranking system and restrict some more inexperienced lawyers from appearing in intermediate or higher courts, there might be some cases that senior lawyers aren’t willing to take on. If junior lawyers are unable to take these cases, then the problem of low defense representation will become even more acute.

Chen Weidong does not believe this is likely to happen. “The low representation rate is primarily in trials of first instance. To my knowledge, the representation rate in second-instance trials can reach about 80 percent. A ranking system would mainly restrict lawyers to appear in basic-level courts. Courts at the intermediate level and above mainly handle trials of second instance.”

But in Han Jiayi’s view, the 80 percent representation rate in trials of second instance shouldn’t be considered high. Clear-cut cases basically don’t go beyond a trial of first instance. When a case reaches a court of second instance, it means that there remain relatively large disagreements and there is very much a need for lawyers to be involved.

“We should recognize that 20 percent of these cases are still are without any defense representation!” Han says. “What’s more, this is just the rate of representation at the trial stage. Individuals also need lawyers during the investigation and indictment stages, but the rate of representation in those stages of the case is even lower.”

Han says: “Things have been moving in a very bad direction, and as the legal environment worsens, many lawyers are unwilling to handle litigation. We should be thinking about how to attract lawyers to return to the courtroom, not forcing them out.”

Criminal court judges—especially those who handle death penalty cases—are also worried about the number of lawyers.

The aforementioned SPC judge who handles death penalty review told Southern Weekly that there is a serious problem with legal aid lawyers who provide formulaic defense opinions in death penalty cases. On the whole they are not able to have much of an impact. “Maybe it’s because legal aid lawyers lack a sense of responsibility, but I personally haven’t seen a case in which they’ve been able to help check the use of the death penalty,” he said. “Even though it’s a major responsibility to handle death penalty cases, they’re mainly being handled through legal aid. Even when defendants hire their own lawyers, these lawyers tend to be the less expensive lawyers.”

Liu Shibi, who spent 10 years hearing death penalty cases in second instance, agrees that ranking lawyers will not necessarily raise the quality of defense in death penalty cases. In his experience, the most effective lawyers in death penalty cases are those between the ages of 30 and 40. Older lawyers are not necessarily better or more responsible. And since death penalty cases generally don’t result in high fees, a large portion of older lawyers is not too willing to take them on.

“Society has been developing very rapidly, and the law has also undergone many changes,” notes Liu. “Some older lawyers can’t really keep up. Lawyers who are too young aren’t appropriate either, as they lack social experience. The vast majority of defendants in death penalty cases come from the lower strata of society, so a defense lawyer must be in touch with the masses and have a reverence and sympathy for human life. Young people might not yet understand this. But if older lawyers spend too much of their time doing high-end work, they, too, can lose touch with the lives and concerns of ordinary people.”

At the same time, Liu Shibi worries that if a ranking system restricts younger lawyers from handling death penalty cases, defendants won’t necessarily be able to fully take advantage of the services of older lawyers. Once cases start to be concentrated in the hands of older lawyers, the dilution of their energies may mean a decrease in their effectiveness.

“It’s quite likely that reading case files, case analysis, and preparation of defense statements will be handled by younger assistants and that the older lawyers will get involved in the case only just before trial,” Liu warns. “Some might even bring their assistants with them to trial, simply making an appearance at court and then leaving the trial to be handled by the assistant. On the other hand, younger lawyers who are trying to establish names for themselves might work a lot harder.”